Allies: Judge upset by Obama remarks not political

Published April 6, 2012 7:00PM (EDT)

NEW ORLEANS (AP) — A federal judge who called out President Barack Obama for saying it would be "unprecedented" for the Supreme Court to strike down a law like his administration's health care overhaul is a conservative voice on what may be the nation's most conservative appeals court.

But those who know Judge Jerry E. Smith from his years on the 5th U.S. Circuit Court of Appeals in New Orleans and earlier days in Texas politics paint a more complex portrait of someone who isn't bound by conservative ideology or afraid to buck the Republican party line.

"He takes his judicial responsibilities very seriously and is very careful to stay out of any political controversy," said Ilya Somin, a George Mason University law professor who clerked for Smith in 2001 and 2002.

Somin said Smith is so careful to remain impartial that he refused to recommend restaurants worth visiting in Houston and New Orleans during a 2003 interview with a blogger. The blogger, Howard Bashman, quoted Smith as saying "it might be improper for a judge publicly to endorse a particular commercial establishment."

Although Smith was a Republican party activist in Texas before President Ronald Reagan nominated him for a seat on the 5th Circuit in 1987, Somin and other former clerks say they never saw any evidence that politics factored into his work on the appeals court.

Stephen Henderson, a University of Oklahoma law professor who clerked for Smith in 1999 and 2000, described him as a brilliant jurist and warm man who embodies "what every appellate judge should aspire to be."

"Judge Smith is not about grandstanding. If he asks a question from the bench, it's an honest question," Henderson said. "Judge Smith has no control over whether others turn a court order into a political football. If he asks a question, it's because he wants to know the answer."

During a hearing Tuesday for a case that is separate from the Supreme Court's review of the health care law, Smith ordered the Justice Department to submit a letter affirming the federal court's authority to strike down laws passed by Congress.

In a letter Thursday responding to Smith's order, Attorney General Eric Holder offered assurances that the Obama administration respects the authority of the courts.

"The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed," Holder wrote.

Smith's office in Houston declined interview requests this week, and said the judge would not be commenting on the ordered letter because the case before his court is pending.

Smith's reference to "Obamacare" during Tuesday's hearing became fodder for the polarizing debate over health-care reform, but a Democratic party activist who crossed paths with Smith before he become a judge remembers him as a someone willing to cross party lines and work outside the mainstream of his own party. David Jones, a Houston lawyer, said Smith's grassroots work and early support for Reagan made him a GOP "outsider" at the time.

"He was never part of the good-old-boy crowd, and neither was I," Jones said.

Smith, a 1969 graduate of Yale University who also got his law degree from Yale Law School, had a private law practice in Houston from 1973 to 1984. He also served as Harris County GOP chairman in the late 1970s.

Smith and Jones once supported the same Democratic candidate, Kathy Whitmire, who was the first woman elected mayor of Houston. Whitmire appointed Smith to be the city's top attorney in 1984.

Some women's groups initially expressed opposition to Smith's nomination to the 5th Circuit because of disparaging comments he reportedly made about women while serving as GOP county chairman. A July 1987 article in the Houston Chronicle says Smith had labeled feminists as a "gaggle of outcasts, misfits and rejects" and referred to the League of Women Voters as the "Plague of Women Voters."

But backing from Whitmire and other supporters helped quell opposition to his confirmation. Jones said he also put in a good word for Smith with the Judiciary Committee and its then-chairman, Sen. Joe Biden, after Smith called him "out of the blue" and invited him to lunch, seeking his help.

"I knew that we weren't on the same side, but I knew he was honest," Jones said.

Jones said lawyers who argue death penalty and abortion cases before the 5th Circuit often give him grief when they find out he spoke out in favor of Smith's nomination.

"They say, 'I really wish you hadn't done that,'" Jones said with a laugh.

Somin, however, said Smith hasn't been shy about taking positions many conservatives wouldn't support.

"You don't need to take my word for it because the decisions are available in the public record," he said. "The record doesn't support a judge who simply votes the way conservatives might like."

Somin cited two of Smith's opinions as examples: a 2003 decision that struck down a San Antonio ordinance restricting the location of adult businesses on First Amendment grounds, and a 2001 ruling in a drug case that held a homeowner has a "reasonable expectation of privacy" when police searched a vehicle owned by somebody else but parked on the homeowner's driveway.

More recently, Smith wrote the March 2 opinion when a three-judge panel upheld a landmark ruling that the Army Corps of Engineers is liable for New Orleans property owners' claims that shoddy work on a shipping channel caused billions of dollars in damage from Hurricane Katrina's storm surge. The panel rejected the federal government's argument that it is entitled to immunity from the plaintiffs' lawsuits.

"Judge Smith was not buying the company line," said Joe Bruno, one of the plaintiffs' lawyers in the case. "They affirmed a decision when the government thought it was a slam dunk for them."

James Garner, who also represented plaintiffs in the same case, described Smith as a "straight, fair, smart judge."

"He zeros in on the issues and asks the right questions," Garner said.

By Salon Staff

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